Thursday, April 17, 2008

The Supreme Court issued its opinion on Baze v. Rees yesterday, marking an uneasy victory for supporters of one of those remaining cultural deficiencies that keeps the U.S. from proudly marching among the ranks of civilized nations, i.e., the death penalty. It is uneasy because the Justices could agree on fairly little, and their disagreement is likely—according to analysts—to lead to increased and welcome wrangling with the issue; but nevertheless a victory because, following the moratorium, our State slaughterhouses are once again free to open for business. The decision, which ruled that lethal injection does not violate the Eighth Amendment prohibition on “cruel and unusual punishment,” has been beautifully though too briefly analyzed by Jody Madeira at the Neuroethics and Law Blog. Madeira’s analysis brings to the foreground the Justices’ struggle with the central, though somewhat unlikely, role played in the deliberations by the concept of dignity. (Disclaimer: I know next to nothing about law.)

I must admit that I have trouble seeing how dignity has anything whatsoever to do with the decision; it is hard to abuse a word as badly as any sanction of the death penalty must. Its appearance, I think, has something to do with Justice Brennan’s 1972 opinion "that a punishment must not by its severity be degrading to human dignity." And so anyone who wishes to uphold the status quo—that the death penalty or any particular means of carrying it out is constitutional—must struggle to fit the grand idea of dignity into the hangman’s noose. But does, or can, the word “dignity” possibly mean what the Justices want it to?

Dignity has different meanings, to be sure. Someone might have dignity merely by virtue of their awareness of the moral law within. Or someone might have a sort of inner dignity, a strength of character. Alternatively, we most commonly describe someone as having dignity based on their outward behavior. And in this regard one might think that the concept of dignity applies most naturally and correctly to external appearance: you lose dignity, for example, when you get ice cream all over your face (incidentally, this is why I prefer cups to cones), or when you trip down the stairs. Or one might go on to extend this use of word, pointing out that one also loses dignity when screaming in pain or expressing one’s fear of death. It is this latter sense that the Court seems most interested in. The problem, though, is that this notion of dignity seems derivative: we take one’s outward appearance to be a sign of their dignity, not to be mistaken for the real thing. The man who calmly faces a firing squad has dignity; the man who stands before the firing squad calmly because he has been injected with a paralytic agent, on the other hand, only appears to have dignity. Taking the appearance of dignity for the real thing shows the utmost disregard for dignity.

What Madeira’s treatment brings out, then, is that the Court’s views on dignity in allowing lethal injection (and the death penalty) do not merely use the word in an overly broad sense, losing the literal sense (i.e., the sense that makes dignity valuable in the first place) behind. Rather, the Court isn’t concerned with dignity as such at all, but uses the word as a smokescreen for something else: the comfort of the people who show up to see the execution. (Of course this is not a concurring view—concurring views were rare in this trial—and Justice Stevens rightly takes the others to task for this abuse.) That is, what the Court is concerned with is not the dignity of the condemned at all, and for good reason: it isn’t clear why they would be. After all, if you’ve already determined that someone ought to be killed, and even exposed to the excruciating pain one requires of retribution (Scalia), it would be rather odd to worry that the condemned might embarrass himself by flailing around in his death throes. Personally, I’d prefer humiliation to death as a mode of punishment, since only the latter clearly violates human dignity in the sense that has value. (C.f. House: “You can live with dignity. You can’t die with it.”)

So no, the Justices concerned about preserving dignity in lethal injection aren’t all that worried about the dignity of the condemned. They are worried, instead, that the audience, seeing what the suffering of violent death looks like, might be made uneasy by their complicity in and support of this ancient barbarism. It is the feelings of those who support State-sanctioned killing—not the subjects of their sentiments—that are paramount. The worry, then, is that those who support execution, by witnessing it in its bare, unaestheticized state, might feel uneasy. The horror! And, feeling uneasy, they might—even worse—reconsider their position. Historically, of course, this shouldn’t be much of a concern: people have spent a great deal of time in the past watching violent executions without a worry. But we are more sensitive today, and our sensitivities must be protected at all costs, even from the consequences of our own choices. And moreover, there may be a deeper fear: that we have reached a state of civilization that really is incompatible with the continuation of these ancient rituals; to hold on to those rituals, then, we must do all in our power to keep that disjunct from getting a visceral grasp on witnesses. Perhaps I am overly cynical, but I cannot keep from seeing the Court as saying, essentially, that we must preserve the death penalty, even at the cost of hiding its true nature from its supporters. (See Dahlia Lithwick’s “Barely Lethal” for an analysis along these lines.)

I want to single out Justice John Paul Stevens: “I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents the pointless and needless extinction of life with only marginal contribution to any discernible social or public purposes.” In recognizing this, Stevens expresses not what he holds to be the sentiment of the population, but the sentiment that the population ought to have, the one compatible with our supposedly “evolving standards of decency,” about which there too has been much debate. Most commonly, at least from what I’ve seen, the Court in such debates is concerned about whether it ought to legislate on the basis of what best fits the currently prevalent attitude, or the direction in which the attitudes seem to be shifting.

What we come to in the end is a particularly American view of the State. The notion of a Republic—a State that serves the interest of the people—can be taken in two markedly different ways. It can serve the interests the people actually happen to have, or it can serve the interests they ought to have, as a people worthy of a civilized State, and thereby make them more worthy. Americans tend toward the former view, and there are, undoubtedly, things to be said in its favor: when Governments attempt to impose morality on their citizens, they rarely do it well, and so the greatest difficulty plaguing comprehensive liberalism is the difficulty of deciding whose standards should serve as the moral aim toward which the State seeks to bring its citizens. We should not, then, want the State to legislate morals except in the clearest of cases. So, for example, the requirement that every citizen have at least a basic education is not much contested (except, at least, on the grounds that real education might somehow conflict with religion). But what case could be simpler, more clear cut, than this one? The wrongness of murder is even less contested than the value of education. What is contested, of course, is the idea that all human beings deserve to live. It is here that the question of human dignity becomes central; the view that some human beings ought to be put to death and yet must be allowed their dignity is, then, one of the major intellectual stumbling blocks on the path to civilized decency.